Opinion
No. COA15-1220
05-03-2016
STATE OF NORTH CAROLINA v. KEVIN LAMONT SMITH
Attorney General Roy Cooper, by Assistant Attorney General Kristin J. Uicker, for the State. Allegra Collins Law, by Allegra Collins, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Mecklenburg County, Nos. 13 CRS 220191, 220194, 220196 Appeal by defendant from judgment entered 9 March 2015 by Judge Robert T. Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 April 2016. Attorney General Roy Cooper, by Assistant Attorney General Kristin J. Uicker, for the State. Allegra Collins Law, by Allegra Collins, for defendant-appellant. TYSON, Judge.
Kevin Lamont Smith ("Defendant") appeals from order denying his motion to suppress and judgment entered after he pled guilty to felonious possession of cocaine. We affirm the trial court's denial of Defendant's motion to suppress and the judgment entered upon his guilty plea.
I. Factual Background
In May 2013, Detective Andy Holt ("Detective Holt"), an inspections officer with the Charlotte-Mecklenburg Police Department ("CMPD") Alcoholic Beverage Control Unit ("ABC Unit") planned, organized, and executed a "take-down" operation of "The Breakroom," a bar located in Charlotte, North Carolina. Detective Holt had received multiple complaints about drug sales, fights, and assaults occurring at the bar. Approximately six or seven additional ABC Unit officers were assigned to various locations surrounding the area where The Breakroom was located as part of the inspection plan.
On 17 May 2013, at approximately 9:30 p.m., Detective Holt took his position for the "take-down" on the roof of the Meineke Car Care Center, located adjacent to The Breakroom. Detective Holt carried a radio, which allowed two-way communication between him and the officers on the ground. Once Detective Holt was positioned on the roof, he used a pair of binoculars to observe two men, later identified as Mr. Scurry and Mr. Holloway. These two men performed security functions at the entrance to The Breakroom, including patting people down and checking identification. Detective Holt communicated his observations to the officers on the ground.
Detective Holt observed Mr. Scurry perform what he believed to be a hand-to-hand drug sale, based on his training and experience. Detective Holt testified he saw Mr. Scurry place "an item that appeared to be white in color" in his left pocket. Shortly thereafter, a group of women approached Mr. Scurry. One of the women held money in her hand and she "went directly to Mr. Scurry." Detective Holt testified Mr. Scurry "pull[ed] something out of his left pocket and handed it to her, and she handed him the money."
Approximately thirty minutes after Detective Holt witnessed the purported hand-to-hand drug sale, he observed a heavier-set African-American male, later identified as Defendant, talking to Mr. Scurry and Mr. Holloway outside of The Breakroom. Defendant continued to walk in and out of The Breakroom periodically, and at one point Detective Holt witnessed Defendant hand "an item" to Mr. Holloway. Detective Holt testified he could not make out what the item was, but observed Mr. Holloway place the item in his left pocket.
After Detective Holt observed this exchange between Mr. Holloway and Defendant, he "let the rest of the team know . . . that [he] felt like [they] had enough to go ahead and perform a true investigation." Detective Holt "told [the other officers] everything that [he] saw that appeared to be suspicious." Detective Holt provided the officers with the descriptions of two people "he wanted [them] to make contact with." One of the individuals Detective Holt described was Defendant.
The first police vehicle to arrive in front of The Breakroom was an unmarked Chevrolet Impala. Detective Holt testified six to eight patrons were standing outside The Breakroom. One of the patrons recognized it was a police vehicle, and said, "Hey, that's the police." Some members of the crowd began walking inside The Breakroom at this time. Detective Holt testified he heard someone in the crowd say, "Y'all better get rid of that sh-t."
Detective Holt remained in his position atop the Meineke Car Care Center roof surveilling the crowd, while "six or seven other officers" entered The Breakroom. As the officers moved inside The Breakroom, many patrons exited and stood on the sidewalk near the main entrance. The officers did not block the doors once inside the bar or prevent any patrons from exiting.
Once inside, Detective William Murray ("Detective Murray") approached Defendant in an area near the restroom and asked him about his role at The Breakroom. Defendant replied he was assisting with security. Detective Murray informed Defendant he wished to speak with him about security procedures in place at The Breakroom. Detective Murray testified Defendant "didn't disagree or give [him] a hard time." According to Detective Murray, Defendant did not try to walk away from Detective Murray at any point during the conversation. Detective C.M. Denton ("Detective Denton") and Detective Jason Kerl ("Detective Kerl") approached Detective Murray and Defendant "less than thirty seconds after" Detective Murray had engaged in conversation with Defendant. After Detectives Denton and Kerl approached Defendant and began speaking with him, Detective Murray left the conversation and went outside. Detective Murray did not have any further contact with Defendant.
Detective Denton testified he observed approximately "ten or fifteen" people when he entered The Breakroom. He further testified he "observed the Defendant, who fit the description that was given by Detective Holt as he was conducting surveillance, and [he] saw Detective Murray speaking with him." Detective Denton began asking Defendant "general questions" about "what he was doing at the bar[.]"
Detective Denton testified, based on his training and experience, he smelled a strong odor of marijuana emanating from Defendant's person while talking to him, and no one else was in close proximity during their conversation. Based on the smell of marijuana, Detective Denton further testified he asked Defendant if he could search his person, and Defendant "was cooperative; he said no problem." Detective Denton stated as he was searching the front part of Defendant's waistband and belt line, he "kind of pushed on that" and felt what he believed was a plastic baggie. Detective Denton testified at this point he wanted to "get [Defendant] into a secure location" to conduct a better search of Defendant's person in a more private location, based on where he had felt the plastic baggie on Defendant's person. Detective Denton asked Defendant if he would step into the restroom to allow him to finish the search. Defendant gave his consent and agreed to Detective Denton's request.
Detectives Denton and Kerl accompanied Defendant into the restroom. Neither detective forcibly moved him into the restroom, nor was Defendant handcuffed at this time. Defendant willingly walked into the restroom with the detectives. Detective Denton testified he "immediately went to the portion of [Defendant's] waistband [where he had] felt that plastic baggie . . . [and] opened the top part of his pants[.]" A plastic bag fell from Defendant's waistband onto the restroom floor. The plastic bag contained four smaller, individually packaged bags — three of which contained cocaine, and one which contained marijuana. At that point, the detectives placed Defendant under arrest and handcuffed him.
On 7 October 2013, a grand jury indicted Defendant on one count of possession of drug paraphernalia, one count of possession of a controlled substance, and one count of possession with intent to sell or deliver a controlled substance. On 22 April 2014, Defendant filed a motion to suppress evidence. In his written motion to suppress, Defendant alleged the contraband seized from his person was the result of a "search and seizure conducted by CMPD officers that exceeded and preceded the scope of a Search Incident to Arrest jurisprudence."
Defendant's motion to suppress was heard on 30 April 2014. Counsel for Defendant argued for the first time that Defendant had not consented to the search, and any consent he had purportedly given to the detectives was not voluntary. After the presentation of evidence and arguments from the State and Defendant, the trial court entered an oral order on 1 May 2014 denying Defendant's motion to suppress.
In its order, the trial court concluded:
1) The Defendant freely, voluntarily and understandingly gave his consent to [Detective] Denton's search.
2) The contact made with the Defendant was extremely voluntary.
3) Defendant, as well as any other patrons in the bar, were free to leave at any time, even after the officers walked into the establishment. This is evidenced by the fact that when the officers walked in the establishment numerous patrons walked out.
The search of Defendant did not exceed the consent given.
Even if the search of the Defendant was not supported by the Defendant's consent, [Detective] Denton had probable cause to search the Defendant based on the strong odor of marijuana coming from the Defendant, and upon the other information that he had received about the Defendant from Detective Holt and others.
On 9 March 2015, Defendant and the State entered into a plea agreement, in which Defendant pled guilty to one count of felonious possession of cocaine in exchange for the State's dismissal of Defendant's charges of possession of a Schedule VI drug and possession of drug paraphernalia. As part of the plea agreement, Defendant also reserved his right to appeal the denial of his motion to suppress. The trial court sentenced Defendant to a suspended term of 4 to 14 months imprisonment, and placed Defendant on supervised probation for a term of 18 months. Defendant gave timely notice of appeal to this Court.
II. Issues
Defendant argues the trial court erred by denying his motion to suppress because: (1) Defendant did not voluntarily consent to the search of his person; (2) Detective Denton's search exceeded the scope of Defendant's consent; and (3) no exigent circumstances justified a warrantless search of Defendant.
III. Standard of Review
Our review of a trial court's denial of a motion to suppress is "strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). "The trial court's conclusions of law . . . are fully reviewable on appeal." State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
IV. Analysis
A. Preservation of Issues for Appellate Review
The State argues Defendant failed to preserve any of his arguments on appeal, because they were not included in his written motion to suppress.
N.C. Gen. Stat. § 15A-977(a) provides: "A motion to suppress evidence in superior court made before trial must be in writing and a copy of the motion must be served upon the State. The motion must state the grounds upon which it is made . . . [and] be accompanied by an affidavit containing facts supporting the motion." N.C. Gen. Stat. § 15A-977(a) (2015). Under N.C. Gen. Stat. § 15A-977, the trial judge may summarily deny the motion if certain conditions are met. See N.C. Gen. Stat. § 15A-977(c). "If the motion is not determined summarily the judge must make the determination after a hearing and finding of facts. Testimony at the hearing must be under oath." N.C. Gen. Stat. § 15A-977(d).
The North Carolina Rules of Appellate Procedure require a party's motion to the trial court state the "specific grounds" for the desired ruling "if the specific grounds were not apparent from the context[,]" in order to preserve an issue for appellate review. N.C.R. App. P. 10(a)(1).
Here, Defendant timely filed a written pre-trial motion to suppress, accompanied by an affidavit alleging facts in support of his motion. Defendant's motion to suppress was served upon the State. Defendant complied with all the requirements of N.C. Gen. Stat. § 15A-977(a). Defendant's sole argument, which he included in his written motion to suppress, was that the contraband seized from his person had been discovered in a search "conducted by CMPD officers that exceeded and preceded the scope of a Search Incident to Arrest jurisprudence[]" as grounds to support his motion.
At the suppression hearing, counsel for Defendant argued for the first time that Defendant did not voluntarily consent to the search, and CMPD did not have probable cause to otherwise execute a search of Defendant. This theory of suppression was proffered by counsel for Defendant after new evidence arose during the suppression hearing, which extended the scope of Defendant's motion. Defense counsel elicited testimony from several ABC Unit detectives that Defendant had consented to a search of his person.
The specific grounds for the ruling Defendant desired are apparent from the context of the hearing, as evidenced by the trial court's order, which contains specific findings of fact and conclusions of law regarding Defendant's consent. Defendant properly preserved the issue of consent for appellate review. See N.C.R. App. P. 10(a)(1); cf. State v. Hudson, 206 N.C. App. 482, 488, 696 S.E.2d 577, 582 (2010) (holding where defendant argued additional theories as grounds for suppression for the first time on appeal, defendant had failed to properly preserve these arguments never raised at trial or at motion to suppress hearing).
Defendant also argues for the first time on appeal that the trial court erred by denying his motion to suppress because no exigent circumstances justified a warrantless search of his person. Plaintiff failed to raise or make this argument in either his written motion to suppress or at the suppression hearing, and this argument is not "apparent from the context" of Defendant's motion. N.C.R. App. P. 10(a)(1). The trial court also did not include any analysis of this issue in its order. Because Defendant failed to properly preserve this issue, he has waived his right to appellate review on this issue. See N.C.R. App. P. 10(a)(1); Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) ("[T]he law does not permit parties to swap horses between courts in order to get a better mount [on appeal]."). We decline to address and dismiss this issue.
B. Consent
Defendant argues he never voluntarily gave his consent to the search of his person and the trial court erred by denying his motion to suppress. We disagree.
1. Voluntary Consent
The Fourth Amendment to the Constitution of the United States, as made applicable to the sovereign states through the Fourteenth Amendment, protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" without a warrant or based upon probable cause. U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090 (1961). The Constitution of the State of North Carolina similarly provides: "General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, . . . shall not be granted." N.C. Const. art. I, § 20.
"Consent searches have long been recognized as a special situation excepted from the warrant requirement, and a search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given." State v. Graham, 149 N.C. App. 215, 218, 562 S.E.2d 286, 288 (2002) (citation and internal quotation marks omitted), disc. review denied, 356 N.C. 685, 578 S.E.2d 315 (2003). "Consent to search, freely and intelligently given, renders competent the evidence thus obtained." State v. Frank, 284 N.C. 137, 143, 200 S.E.2d 169, 174 (1973) (citations omitted).
"[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 862-63 (1973). In evaluating the voluntariness of consent to a search, "[t]he trial judge is in a better position to weigh the significance of the pertinent factors than is an appellate tribunal." State v. Little, 270 N.C. 234, 240, 154 S.E.2d 61, 66 (1967).
N.C. Gen. Stat. § 15A-221(a) also provides for warrantless searches and seizures "if consent to the search is given." N.C. Gen. Stat. § 15A-221(a) (2015). N.C. Gen. Stat. § 15A-221(b) defines consent as "a statement to the officer, made voluntarily . . . , giving the officer permission to make a search." N.C. Gen. Stat. § 15A-221(b). Consent to search may be elicited through nonverbal conduct, as well as through an oral or written statement. Graham, 149 N.C. App. at 219, 562 S.E.2d at 288.
In denying Defendant's motion to suppress, the trial court made the following relevant findings of fact:
As Detective Denton searched the Defendant, he felt what he thought, based on his training and experience, was a plastic baggie located underneath his waistband. He asked the Defendant to step into the restroom so he could perform a more thorough search, and the Defendant agreed to go into the bathroom with him. He then left this area, and the Defendant was extremely cooperative and said no problem, walked into the bathroom. The Defendant freely walked in there; they didn't pull him in there or handcuff him at any time. The three walked into the bathroom with Detective Denton in front and the Defendant and Detective Kerl in the rear.
Detective Denton immediately went to the portion of the Defendant's waistband, looked into his pants at that time, and the baggie fell out on the ground. This baggie contained four small plastic baggies of what appeared to be, to Detective Denton based on his training and experience, to be [sic] cocaine. He also saw one small baggie of what appeared to be, based on his training and experience, to be [sic] marijuana. The Defendant was then placed in handcuffs and arrested for possession of those narcotics.
The contact with the Defendant was extremely voluntary, and to that extent he was very cooperative verbally, answered the officers appropriately and never once indicated any hesitation in speaking with them.
The testimonial evidence presented to the trial court showed Defendant was present inside The Breakroom, a public establishment, during normal operating hours when approximately seven officers entered. The officers did not detain any bar patrons, including Defendant, or otherwise prevent them from freely entering and exiting The Breakroom. There were other people inside The Breakroom while the officers were speaking with Defendant, and no evidence was presented that any of the officers threatened Defendant, brandished their weapons, or made any suggestion of the use of force.
Upon detecting the odor of marijuana while speaking with Defendant, Detective Denton asked Defendant for consent to search his person. Detective Denton testified Defendant "was cooperative" and replied, "no problem." When Detective Denton began a cursory search of Defendant, he felt what he believed to be a plastic baggie located in the waistband of Defendant's pants and asked Defendant "if he might step into the restroom to finish [his] search with Detective Kerl."
Once again, Defendant "was cooperative" and "he agreed with that." The evidence presented at the suppression hearing tended to show at no point during the search did the officers put Defendant in handcuffs or "forcibly move him into the bathroom." Detective Denton testified Defendant "walked on his own will" into the restroom.
Defendant did not present any evidence which showed he expressed any resistance to or disagreement with Detective Denton's requests; nor did Defendant present any evidence that his consent was somehow coerced or otherwise not freely and voluntarily given. The record evidence and hearing testimony support the trial court's finding of fact, and ultimate conclusion of law, that Defendant voluntarily consented to a search of his person. This argument is overruled.
2. Scope of Consent
Defendant argues, should this Court find his consent was voluntarily given, Detective Denton's search exceeded the scope of his consent. Defendant contends even if he gave general consent to search, his consent did not encompass "having his pants and underwear pulled away from his body so that his groin area could be examined." This argument is without merit.
"To determine whether the scope of a defendant's consent to a search includes the removal of clothing, we apply the standard of 'objective reasonableness' - what would the typical reasonable person have understood by the exchange between the officer and the suspect." State v. Neal, 190 N.C. App. 453, 453, 660 S.E.2d 586, 587 (2008) (citation and internal quotation marks omitted) (holding trial court properly denied motion to suppress where defendant gave consent to search, did not withdraw that consent, and interactions between defendant and police officers would have led a reasonable person to believe the police would conduct a strip search of defendant). "Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." State v. Fowler, 220 N.C. App. 263, 266-67, 725 S.E.2d 624, 628 (2012) (citation and internal quotation marks omitted).
Here, Defendant gave a general consent to the search of his person. After feeling what he believed to be a plastic baggie located in Defendant's waistband, Detective Denton asked Defendant if they could continue the search in the restroom. Defendant agreed, and a reasonable person would have understood the implication of stepping into a private restroom for a more invasive search. Neal, 190 N.C. App. at 453, 660 S.E.2d at 587.
The search was conducted in a reasonable manner, and was not any more extensive than necessary. The evidence showed Detective Denton "immediately went to the portion of his waistband that [he] felt that plastic baggie[,]" which dropped to the floor. The search ended after the contraband was discovered and Defendant was placed under arrest and handcuffed. The trial court correctly concluded the search was conducted within the scope of Defendant's consent. This argument is overruled.
V. Conclusion
Defendant failed to assert and preserve his argument that no exigent circumstances existed to justify a warrantless search of his person.
The evidence presented at the suppression hearing supports the trial court's findings of fact, and ultimate conclusion, that Defendant voluntarily consented to a search of his person. The officers' search was conducted within the scope of, and did not exceed, Defendant's consent. The trial court's order denying Defendant's motion to suppress is affirmed.
AFFIRMED.
Judges CALABRIA and HUNTER, JR. concur.
Report per Rule 30(e).